Can you record a phone call in Maryland to use in court?

Can you record phone calls in Maryland?

Maryland is a two party consent state, which means that both parties to the phone call must agree that it can be recorded. If not, or if the call is secretly recorded, the recording is inadmissible under Maryland law. Even worse, the person recording the call can be subject to criminal and civil liability.

Maryland has the Maryland Wiretapping and Electronic Surveillance Act. Md. Code, §§ 10-401 of the Courts and Judicial Proceedings Article.  Section 10-402(a)(1) of the Courts and Judicial Proceedings Article is clear and unambiguous. It does not matter whether the person recording the call knew that what he was doing was illegal. The Court of Appeals so held in Deibler v. State, 365 Md. 185 (2001), overruling the Court of Special Appeals precedent to the contrary that had come to prominence during the Linda Tripp matter.

It also does not matter that the person recording the call was a party to the conversation. Maryland law requires the consent of all parties to the conversation for it to be recorded (except in other cases specified by the Act). See CJP § 10-402(c)(3). Maryland law is stricter in this regard than the corresponding federal law, which makes it sufficient that only one party to the conversation consented to its recording. See 18 U.S.C. § 2511(d).

If it is revealed that someone made the recording deliberately, he could be charged with a felony and, if convicted, be "subject to imprisonment for not more than 5 years or a fine of not more than $10,000, or both." CJP § 10-402(b). He can also be sued civilly, and could be subject to liquidated damages, as well as to punitive damages and reimbursement of attorney's fees and litigation costs. CJP § 10-410.

Maryland law also provides that the recording is inadmissible at trial. Section 10-405(a) of the Courts and Judicial Proceedings Article provides:

Except as provided in subsection (b) of this section, whenever any wire or oral communication has been intercepted, no part of the contents of the communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of this State, or a political subdivision thereof if the disclosure of that information would be in violation of this subtitle.

This statute is "unambiguous" and "precludes the admission of evidence which was not lawfully intercepted." Mustafa v. State, 323 Md. 65, 73 (1991). The Court of Appeals held in Mustafa that the statute expressed a public policy that barred the admission of a recording that was made by a person in the District of Columbia (lawfully under that jurisdiction's laws) of a telephone conversation with a person who was in Maryland and had not consented to the recording. The General Assembly partially overruled that result in 2001, with the enactment of § 10-405(b) of the Courts and Judicial Proceedings Article (in response to the Court of Appeals's following of Mustafa in the case of Perry v. State, 357 Md. 37 (1999)).

The statute also bars the admission of the recording for "impeachment" purposes. See Wood v. State, 290 Md. 579 (1981). Other than the exception stated in § 10-405(b), the only exception to the rule of exclusion would be to allow admission of evidence of the recording in a criminal prosecution or civil action for a violation of the Act itself. The Court of Special Appeals held as such in Standiford v. Standiford, 89 Md. App. 326 (1991), cert. denied, 325 Md. 526 (1992), a case arising out of a civil action, in which it said that "such evidence may be introduced in evidence for the narrow purpose of proving a violation of the Act in such a civil action." Id. at 346. The Court reasoned that the Act's provision for a civil action would be "meaningless" if evidence of the recording could not be admitted in such an action. Id.

I know what you're thinking. Someone is being prosecuted or accused of an action, and has evidence that directly contradicts the accusation. We have seen situations where the other party even admits that they are "making up the charges." And the law of the Free State says that, not only is the evidence inadmissible, but he can also be prosecuted and sued for preserving that evidence? While there are some situations in which an argument could be made to support that the Maryland statute violates the U.S. Constitution, the bottom line is that it is not wise to record a telephone conversation where one party is located in Maryland unless that party consents.